State v. McMullen

• Decision Date: 08 January 1927
• Docket Number: 20038.
• Citation: 142 Wash. 7,252 P. 108
• Parties: STATE v. McMULLEN.
• Court: Washington Supreme Court

252 P. 108

142 Wash. 7

STATE v. McMULLEN.

No. 20038.

Supreme Court of Washington

January 8, 1927

Department 1.

Appeal from Superior Court, Grant County; Jeffers, Judge.

Frank McMullen was convicted of carnally knowing his stepdaughter and he appeals. Affirmed.

Corbin & Easton, of Wenatchee, for appellant.

T. B Southard, of Wilson Creek, and N.W. Washington, of Ephrata for the State.

PER CURIAM.

The appellant, Frank McMullen, was convicted of the crime of carnally knowing his stepdaughter, a girl between the ages of 12 and 13 years. On the judgment of conviction, he was sentenced to the penitentiary for a term of not less than 8 nor more than 15, years.

Of the errors assigned, the first is that the court erred in permitting the girl to testify in the cause. It is contended that she did not have sufficient mental capacity to understand the nature of an oath, or to testify from her own recollection or knowledge as to matters concerning which she was called as a witness. The record does indeed show that the girl was not bright mentally. She was utterly incapable of narrating in continuous sequence events as they occurred, and at times seemed incapable of understanding the most simple questions. But we do not understand that she was mentally defective in the sense that she was insane or idiotic. It was simply a case of a child backward in mental development; that, while her body was normally developed for a girl of her age, she had the mind of a much younger child. The record also furnishes some support for the appellant's claim that she answered only upon suggestion; that, when questions were propounded to her which seemed to suggest an affirmative or negative answer, she answered in accordance with the suggestion. But her testimony is not altogether of this sort. At times when she was made to comprehend she testified, without suggestion, definitely and plainly with sufficient detail to indicate that she was testifying to things as they occurred. It is true that the guilt of the appellant rests largely on her testimony. There is not much of corroboration; the principal matter in this respect being that she made complaint to her mature relatives of the acts charged against the appellant when the first opportunity presented itself for her so to do. There was evidence also of a somewhat damaging admission made by the appellant. This he denies, but his denial is somewhat weakened by the fact that, in order to make that denial effective, he was compelled to deny certain other transactions, concerning which there are a number of witnesses against him.

Since the question of the appellant's guilt rests so largely on the testimony of the girl, we have examined her evidence with care. Taking it as a whole, we are convinced, as must have been the trial judge and the jury, that she was competent to testify, and that she testified truthfully to the facts essential to show the appellant's guilt.

There is another objection to the sufficiency of the testimony to support the judgment, which may be noticed here. The appellant intermarried with the mother of the girl when the girl was about 2 years of age. She continued to live in the family of the appellant and her mother until the mother died some months before the time of the happening of the acts with which the appellant is charged. On the death of the mother the girl was taken away from the home by an aunt, and kept in school until the close of the school year, when the appellant came for her and brought her back to his home. The girl testified to three several acts, occurring at various places on the premises on different days, one of which occurred in a pumphouse, which the evidence indicates was not the first of the series. The pumphouse burned, the evidence indicates, within two days after the girl's return, and while the appellant was at Spokane some miles from the premises. The argument is that the evidence of the pumphouse incident must be false, and, it being false, there is no reason to believe her testimony as to other acts. But we are inclined to believe that the girl was rather mistaken as to infrequency of the acts rather than as to their sequence, or the places at which they occurred.

Aside from the fact that the evidence presents an uncertainty as to the dates bearing on the matter, there is the girl's statement that the appellant said to her at the time of the pumphouse incident that they 'must not do it too often, as she might have a baby.'

The appellant put his character in issue as to morality and decency, and as to being a law-abiding citizen. The prosecuting attorney, on cross-examination of the character witnesses, asked one of them if he had not heard it reputed that the appellant was engaged in the manufacture and sale of moonshine whisky. Of another he asked whether he had not heard that the appellant's wife had left him on two different times because of his cruel treatment of her. The questions were repeated in variant forms to two others of such witnesses. The appellant, when the questions were propounded, objected to them, and asked the court to instruct the jury to disregard them. The court in each instance sustained the objection, but did not at that time give the requested instruction. It is complained that the questions were highly prejudicial to the defendant, and that the court, in refusing to give the specific instruction committed reversible error. But we are not persuaded that it would have been error had the court permitted the witnesses to answer the questions propounded. The cases from other jurisdictions seem not to be in accord on the question (16 C.J. 582, § 1125), but...